Package Travel and Educational Institutions

Is a field trip provided by a university to undergraduates as part of a degree course a package tour?  The court considered the question in McCulloch v University of Leicester (HHJ Hedley, 27 February 2020).

The claimant was a zoology undergraduate at Leicester University.  Like all students, she paid an annual tuition fee.  During her second year, she signed up for an optional course which included a field trip to Madeira (an autonomous region of Portugal) involving lectures, lab work and field visits.  There was no charge for the trip.  Among the activities was a whale spotting boat trip during which the claimant was injured by the fault of the skipper.

The claimant did not sue the local boat operator even though it was insured.  That claim would have been governed by the law of Portugal.  Instead, she contended that the field trip was a package tour and the university an organiser under the Package Travel, etc., Regulations 1992/3288 (now replaced by the Package Travel and Linked Travel Arrangements Regulations 2018/634, as to which more below).  If she was right, the university would be liable for the default of the boat operator.  This route meant the claim would be governed by English law and there would be no jurisdictional problem but raised the question of whether this type of educational trip fell within the scope of the 1992 Regulations.

There were two linked issues.  (1) Does this type of educational trip fall within the intended scope of the 1992 Regulations at all?  (2) Even if it would otherwise fall within the 1992 Regulations, was this trip "sold" given that there was no price to the student other than the general tuition fee?  The judge held in the university's favour on both issues and the claim failed.

As to issue (1), the judge held that the trip and services formed part of a wider contract between the university and the student for educational services, and that tuition rather than travel was the essence of what was being provided even on the field trip.  The Regulations were not intended to apply to such a case.  It is not that any educational element will take a trip outside the scope of the Regulations, but in this case the trip itself was merely a part of the degree course.

That would have been enough to dispose of the case, but the judge also found for the university on issue (2).  The claimant's case was that the tuition fee, at the time £9,000, provided consideration for the trip, which was therefore "sold".  However, when the claimant committed herself to the second year of her course, and thus to the tuition fee for that year, she had not selected the course containing the field trip.  Her fee would not have been greater or less if she had chosen a course which had no field trip.  The £9,000 fee applied to all undergraduates no matter what course they took.  The connection between the tuition fee and the trip was not such that the one could be regarded as consideration for the other giving rise to a separate enforceable contract.

Of course, the decision is fact sensitive.  A different series of arrangements might produce a different result, for example where there is a separate charge for a trip and it contains a mixture of study and leisure activities.  Nonetheless, the judgment will be of comfort to educational institutions providing similar arrangements, who had probably never thought that they might be regarded as tour operators and subject to the regulatory and possibly criminal liabilities under the Package Travel Regulations.  For claimants injured on such trips, it will mean having to look more closely at suing the foreign tortfeasor rather than the UK educational institution.  It should be kept in mind that many European countries contain a direct right of action against insurers in all cases not merely (as in the UK) in motor cases.  A direct right of action may allow the jurisdiction of the English court to be established under Odenbreit (for the Brexit transition period at least and continuing after that if we move to a Lugano type jurisdictional regime).

Finally, what will the effect of the 2018 Regulations be on such a claim?  Under the 1992 Regulations, the "organiser" of a package is "the person who, otherwise than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer" (reg.2(1)).  A university organising several field trips per year may well be said to organise trips other than occasionally, so all else being equal might be an organiser.  Under the 2018 Regulations, however, the organiser must be a "trader", a concept which did not exist in the 1992 Regulations.  A trader must be acting "for purposes relating to their trade, business, craft or profession" (reg.2(1)).  Overall the 2018 Regulations are more clearly focussed on the relationship between consumers and commercial organisers than were the 1992 Regulations.  Recital (22) of Directive 2015/2302/EU (which the 2018 Regulations implement) states that a trader will be "typically a high street or online travel agent."  It is likely that it will be still harder under the 2018 Regulations for a student injured on an educational trip to rely on the Package Travel Regulations to sue her university.